IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Jiban ballav Das , President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray, Lady Member.                     

                                              Dated the 31st day of August ,2018.

                                                 C.C.Case No.62 of 2017

Manoj Ku.Sahoo  ,  S/O Rabindra Ku.Sahoo   

At/P.O. Kampagarh  ,P.O/P.S. Bari-Ramchandrapur  

Dist. Jajpur 

                                                                                                                            …....Complainant .                                                                       .

                   (Versus)

1.Branch Manager,Hinduja Leyland Finance Ltd, At.Tinimuhani ,College Road

 Near Duhuria, P.O/P.S/ Kendrapada ,Dist.Kendrapada

 2.Branch Manager,Hinduja Leylanda Finance Ltd, Jajpur Road branch ,

Chorda By pass Infront of Brahmani Hotel ,Jajpur Road,Dt.Jajpur .

                                                                                                                      ……………..Opp.Parties.

For the Complainant:                         Sri Srikanta Mohapatra, S.Das, Sri B.M.Ray, Advocates.

For the Opp.Parties : No.1 & 2          Sri Subash Ch.Pradhan,  R.Pradhan, Sri C.R.Ojha,Advocates .

                                                                                                     Date of order:  31. 08.2018.

SHRI PITABAS MOHANTY ,  MEMBER  .

Deficiency in finance service is th e grievance of the petitioner.

            The fact in brief as per complaint petition is that  the petitioner is an unemployed youth and for self employment  to earn  his lively hood purchased a three wheeler with the financial assistance of the O.P  by  virtue of an hypothecation agreement . As per the term and condition of the agreement the finance amount along with interest will be paid within 36 equal installments amounting to Rs 6,355/-  per EMI  which carry 9% interest .The O.P  also took 30,000/-  down payment  and the  financed amount was Rs 1,67,000/- .The petioner has deposited 36 no. of cheque for repayment of the loan amount .  The  O.P   is collecting the installments  thorugh  the cheque .The finance amount is included with the insurance amount .Now the O.p demanding 41 installemts instead of 36 installments  with yearly interest 12 % instead of 9% along with further demand of insurance money which cause gross irregularities of the hypothecation agreement  and by that the petitioner is facing a huse monetary loss .Thereafter the petioner wanted to obtain the account  statement through RTI from the O.P on  dt.30. 03.17 but the O.P did not provide the same  and threatening the petitioner to seize  the vehicle on the road . Thereafter the petitioner send a lowyers notice  but  it was in vain . Accordingly finding no other way  the petitioner  knocked the door of this Fora with the prayer that  this fora may direct the O.P  to indemnify  the claim of the petitioner and   pay for Rs. One  lakh   as  compensation .

            After notices  the O.ps entered  in to appearance   taking the  following  stands

1That the consumer  complaint  as laid down is not maintainable  in facts as well as in law .

The petioner has absolutely  no casue of action to bring the instant   case against  the O.P

            The petioner purchased the said vehicle  for earning his livelihood and  self employment . After proper consideration thereof the O.P agreed to finance  an  amount of  Rs. 1,67,000 /- and also paid the Insurance amount of Rs.14,000/- to the complainant  by way of a duly executed       hypothecation agreement vide Loan agreement No.ORBUKN00208  dt.18.9.14. As per agreement  the petitioner  has to pay interest of Rs 73,063/-  against finance amount . Accordingly  the petitioner  has to  pay the total agreement value of  Rs 1,67,000 plus 73,063 plus 14,000                                    = 2,54,063. The fainance  amount was to be repaid by  the petitioner in 41 EMI  in 41 monthly installments  from 21.10.14  to 21.05.16   for 20 installments  @   rate of  Rs 6,255/-   from 21.06.16  to 21.03. 17    for  10 installments and   @  of Rs.5855/- from  21. 4.17 to 21.02.18 for 11 installments . Accordingly  the repayment  schedule and agreement  copy  issued to the petitioner . It has an essential  pre-requisite  that the said installments was to be paid in due dates  as per term and condition of the said agreement ,  failing which the over due charge and delay payment charges would accrue  in the loan account of the petitioner herein  and  the petitioner has also agreed to pay cheque bounce charges in case his instruments on that accord  were dishonored on presentation on such due dates. The said agreement is also contents and inter alia                           an arbitration clause  wherein  the parties have been agreed that in case of any dispute, differences claims and questions whatsoever arising out of this agreement between the parties, the matter shll be referred to the arbitrator whose decision will be final and binding on both the parties . Hence the present complaint filed by the petitioner may be dismissed due to lack of jurisdiction.                              

It is further  submitted that the petitioner has failed to adhere to the repayment schedule as per term and condtions of the financial arrangement through such a duly executed agreement  of finance charge  documents   . It is sub mitted that  the petitioner had made almost all his payments beyond the due date of payment of the same as a result of which considerable  delay payment charges and penal interest accrued in his account .The petitioner issued the cheques for payment of installment which are bounced due to insufficient of funds in his account . The cheques No.94085 dt.23.04.15 for an amount of Rs.6355/- ,cheque No.94081 dt.20.05.15 for an amount of Rs.6355/- ,cheque No.94115 dt.30.03.17 for an amount of Rs.6255/- and cheque No.94115 dt.02.05.17 for an amount of Rs.6255/-.  Issued by the petitioner  are bounced due to insufficient of funds in his account . So the petitioner is a regular defaulter . The petitioner instead of repaying the said dues to the O>ps has filed the present dispute on a false pretext that the petitioner asked for detail  account statement  but the O.P did not provide the same and threatened to seize the vehicle . The O.P  always co-operated  with the petitioner for the settlement of the loan . The petitioner is a debtor and the O.Ps are creditor and the relationship between the parties is that of a debtor and creditor which is outside the scope and purview of C.P.Act   as per observation of Hon’ble NCDRC reported in 2006(III) CPJ-247 (N.C)    .Accordingly the complaint is laibel to  be dismissed  filed by the petitioner.

            We heard the argument from the learned advocate of the petitioner and   O.P . After perusal of the record and documents in details we observed that :

It is undisputefd fact the petitioner  purchased the above vehicle with the financial assistance  of the O.P on the strength  of an hypothecation agreement  . 

It is   also un disputed  fact the petitioner became  a defaulter  for payment of EMI  and some cheques have been dishonored due  insufficient of funds in his account . As per term and condition of the agreement the petitioner is willing to pay the Emi  on due date , failing which the petitioner is liable to be paid on DPC as  per term and condition of the agreement .The Petitioner will  have to pay   DPC but such DPC can not be more than 9 %  as per observation of Hon’ble High court of Odisha passed in W.P(C) No.17720/09 and constitution bench of Supreme court reported in A.I.R -2001 p,3095 .    It is also a fact  that the o.p raised the point of Arbitration clause, it is our considered view that  this point is not sustainable  in the present dispute as per observation of Hon’ble  S.C  reported in 2004-CTJ-(1) –S.C, wherein it is held that:

            Arbitration Clause is no bar for entertaining the dispute by consumer Fora”.

This fora   may take adverse view  due to non reply of legal notice sent by the petitioner to the O.P  as per observation of Hon’ble  National Commission reported in 2013(1) CPR-507  .

Accordingly as per observation stated above we are inclined to dispose of the dispute as per the order below.

Hence this order

The o.ps are directed to re calculate the DPC of the above vehicle   at the rate of  9% as per   observation of  Hon’ble  High court of Odisha  and Supreme court  and  after re-calculation  the revised statement of account shall be served  to the petitioner  within one month. The petitioner is also directed  to pay the outstanding amount  within the stipulated period fixed by the O.P. Accordingly the matter stands disposed of an contest. No cost.     

                        This order is pronounced in the open Forum on this the 31st day of August,2018 under my hand and seal of the Forum.